I Ain’t Afraid of No Ghost! Ethics of Ghostwriting by Freelance Attorneys

by Laurie Rowen

Isabelle Smith’s recent article – “I Ain’t Afraid of No Ghost!: A Review of the OCBA Formal Opinion 2014-1 on Ghostwriting by Contract Lawyers and Out-of-State Lawyers” appears in the December 2014 issue of the OC Lawyer Magazine.  Isabelle, a former partner at Howrey, LLP and a freelance lawyer with Montage Legal Group, is a member of the OCBA Professionalism and Ethics Committee.   Isabelle’s article discusses in detail the OCBA Formal Opinion 2014-1 on “ghostwriting” by contract and freelance lawyers, which is defined as when a lawyer drafts documents for another lawyer who files them with the court without disclosing the ghostwriter’s involvement to the court or opposing counsel.  The article discusses several important conclusions of OCBA Formal Opinion 2014-1, including the following:

(1)    Neither counsel of record nor the ghostwriter is violating his duty of candor and/or honesty by not disclosing the involvement of a ghostwriter

(2)    Counsel of record’s duties of competency and supervision are implicated when using ghostwriters.

(3)    Out-of-state lawyers ghostwriting for cases and clients in California could be engaged in the unauthorized practice of law, and counsel of record could be aiding and abetting such unauthorized practice.

(4)    If the use of a ghostwriter is a “Significant Development,” counsel of record should inform the client.

The article and formal opinion base their conclusions on various ethical rules, including California Business and Professions Code sections 6068, 6106, 6125; California Rules of Professional Conduct, Rules 5-200(A) and (B), Rules 3-100(A) and (B), Rule 3-110(A)-(C), and Rule 3-500; California Rule of Court 3.37; ABA Opinion 07-446 (2007); LA County Bar Association Ethics Opinion No. 502; and State Bar of California Formal Opinion No. 2004-165, and No. 1994-138.

The article reiterates Formal Opinion 2014-1’s conclusion: “There is nothing inherently unethical with a client or lawyer hiring another lawyer – often a contract lawyer – to ghostwrite a document to be submitted to court, without identifying the contract lawyer or disclosing his involvement. Only when the client or lawyer seeks to recover his attorneys’ fees must the contract lawyer’s role be disclosed to the court. If, however, the involvement of the contract lawyer constitutes a significant development, then his involvement must be disclosed to the client. Whatever the relationship, however, both lawyers must comply with their ethical obligations, including their duties of competence. In addition, to the extent the contract lawyer is not admitted to practice in California, both lawyers must guard against potential unauthorized practice of law.

For more information on ghostwriting or freelance lawyering, please contact Montage Legal Group at [email protected].

 

Isabelle Smith, formerly a partner with Howrey, LLP, joined Montage Legal Group as a freelance attorney in 2011. Isabelle obtained her law degree from University of California, Hastings in 1998 and served as the Executive Editor of the Hastings Law Journal.   She was a partner in the Global Litigation Group of Howrey, specializing in complex business litigation, with a particular focus on professional liability disputes and securities matters.  Isabelle has represented and counseled law firms in legal malpractice disputes, and Fortune 500 companies and start-ups in securities class actions, derivative suits, corporate governance, antitrust, merger and acquisition disputes, unfair business practices, and trade secrets.   In 2006 and 2007, Isabelle was named a Southern California Super Lawyer Rising Star by Law & Politics Magazine.  She was also named Pro Bono Partner of the Year by Howrey, LLP’s Irvine office.

Isabelle has co-authored numerous articles, including “Friends with Benefits” and “It Was My Understanding There Would Be No Patent Law!” for the OC Lawyer magazine.

Isabelle handles high-level legal work for law firms in Orange County and nationwide.  For more information on using Isabelle Smith for a litigation project, please contact [email protected].